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A  RIGHT  OF  THE  STATES 


AN   ADDRESS 


DKXiZVKKKD    BY 


AliFRED   P.  THOM 

OF  Waskington,  D.  C. 


BKFOKK   TUB 


STATE  BAR  ASSOCIATION  OF  TENNESSEE 


JUNE  25.  1915 


CHATTANOOGA 


HE 


A  RIGHT  OF  THE  STATES 


AN  ADDRESS 

DELIVERED    BY 

ALFRED  p.   THOM 

OF  Washington,  D.  C. 

BEFORE    THE 

STATE  BAR  ASSOCIATION  OF  TENNESSEE 
ON  June  25,  1915,  at  Chattanooga 


Mr.  President  and-  Gentlemen  of  the  Tennessee  Ba/r  Asso- 
ciation: 

One  hundred  and  twenty-six  years  ago  the  United  States 
became  a  nation.  On  the  4th  of  March,  1789,  they  joined 
in  putting  into  effect  the  Constitution  which  formed  them 
into  "a,  more  perfect  union"  and  organized  them  to  take  their 
place  as  a  unit  among  the  nations  of  the  earth. 

Only  recently  they  had  been  separate  and  distinct  colonies 
of  Great  Britain,  legally  foreign  to  each  other,  and  were 
bound  together  by  no  ties  except  a  sense,  common  to  them 
all,  of  oppression  and  discontent  and  a  common  aspiration 
and  purpose  of  liberty.  They  combined  to  declare  and  to 
fight  for  their  independence,  and  to  assert  that,  as  free  and 
individual  States,  they  had  "full  power  to  levy  war,  conclude 
peace,  contract  alliances,  establish  commerce,  and  to  do  all 
other  acts  and  things  which  independent  States  may  of  right 
do." 

le 


During  the  succeeding  epoch-making  struggle,  which 
marked  the  birth  of  a  new  nation,  they  souglit  to  bind  them- 
selves together  by  something  more  enduring  than  the  sym- 
pathies and  exigencies  of  the  existing  war,  and,  to  this  end, 
adopted  as  their  bond,  of  union  the  Articles  of  Confederation. 
Jealous,  however,  of  their  separate  and  distinct  autonomies, 
they  were  miserly  in  tlieir  grant  of  power  to  the  central  au- 
thority which  they  created.  Wanting  it  to  be  efficient,  but 
determined  that  it  should  possess  none  of  their  cherished 
sovereignty,  they  withheld  from  it  the  power  to  provide, 
through  its  own  agencies,  a  national  revenue.  It  could  not 
levy  taxes,  but  was  made  dependent  upon  the  States  for  their 
respective  contributions.  It,  therefore,  could  not  build  or 
equip  a  navy,  nor  raise  or  arm  or  pay  an  army.  Thus  it 
had  no  effective  power  to  provide  for  the  common  defense, 
to  protect  any  national  right,  or  to  command  the  respect  or 
the  fair  treatment  of  foreign  nations.  Likewise,  it  had  no 
power  to  control  or  regulate  trade,  either  foreign  or  domestic. 
That  power  was  carefully  reserved  by  the  States  to  themselves 
individually. 

The  Articles  of  Confederation  were,  therefore,  soon  found 
to  be  utterly  inadequate  to  a  national  existence.  It  is  true 
that  they  remained  untouched  during  the  continuance  of  the 
war.  This,  however,  was  not  because  they  were  satisfactory, 
but  because  every  public  energy,  to  the  exclusion  of  all  ques- 
tions of  domestic  organization,  was  devoted  to  the  achieve- 
ment of  independence. 

A  government  without  a  purse,  and  hence  without  power 
to  provide  for  the  common  defense,  or  to  insure  domestic 
tranquillity,  was  a  mere  "rope  of  sand"  and  could  not  long 
endure.  From  the  standpoint  of  mere  national  existence,  it 
was  found  utterly  inadequate. 


But  there  was  another  cause  for  dissatisfaction,  which,  in 
the  condition  of  the  public  mind,  temporarily  freed  from 
the  fear  of  foreign  invasion  and  insistently  turning  to  the 
necessity  of  rebuilding  domestic  prosperity  after  the  waste  of 
war,  was  hardly  of  less  importance  than  a  provision  for  the 
common  defense  and  for  the  preservation  of  the  national  ex- 
istence. The  needs  of  trade  were  becoming  more  and  more 
apparent  and  its  just  regulation  the  subject  of  greater  and 
more  universal  public  concern. 

In  considering  the  causes  which  brought  our  Federal  Con- 
stitution into  existence,  it  is  of  peculiar  interest  at  this  time 
to  study  the  influence  which  the  desire  for  a  uniform  regula- 
tion of  commerce  had  upon  its  adoption  and  upon  its  char- 
acter. 

When  the  war  ended  and  independence  was  an  accom- 
plished fact,  each  State  possessed  a  sovereignty  which  was 
practically  unlimited  over  its  foreign  commerce  and  over  its 
commerce  with  the  other  States.  Between  many  of  them 
there  was  a  race  of  greed  and  selfishness  for  commercial  ad- 
vantage and  supremacy. 

It  will  be  noted  that  each  State  possessed  the  power  of  im- 
posing export  taxes  and  could  thus  keep  its  products  at  home, 
excluding  them  from  the  use  and  enjoyment  of  the  people  of 
the  other  States;  that  each  State  possessed  the  power  of  im- 
posing import  duties  and  thus  could  exclude  people  of  the 
other  States  from  its  markets;  and  that  each  State  retained 
complete  control  over  its  own  ports,  and  thus,  by  its  com- 
mercial policy,  could,  through  the  competition  of  ports,  regu- 
late or  break  down  the  commercial  policy  of  another  State 
in  regard  to  its  own  ports  and  in  regard  to  its  own  com- 
merce. 


These  powers  were  large  enough,  not  only  to  create  State 
rivalries  and  State  enmities,  but  to  elevate  the  States  of  great- 
est commercial  power  into  complete  commercial,  and  finally 
into  complete  political,  ascendancy  over  their  weaker  sister 
States. 

Nor  were  these  powers  merely  theoretical.  They  were 
brought  into  active  and  oppressive  operation.  They  were 
made  the  means  of  commercial  war  by  one  State  upon 
another. 

For  example: 

Virginia,  by  her  export  duties  and  inspection  laws,  with 
the  incidental  tax,  sought  to  keep  her  tobacco  at  home. 

Maryland,  by  her  inspection  laws  and  taxes,  sought  to  do 
the  same  with  regard  to  her  potash  and  pearlash. 

Massachusetts  prohibited  the  exportation  of  grain  or  un- 
manufactured calfskins  and  imposed  an  onerous  inspection 
tax  on  exports  to  other  States  of  tobacco,  butter,  and  other 
products,  while  North  Carolina  laid,  for  a  limited  time,  an 
embargo  on  the  exportation  to  other  States  of  com,  wheat 
flour,  beef,  bacon,  and  other  necessaries  of  life. 

Turning  to  imports: 

New  York,  by  imposing  an  import  duty,  sought  to  exclude 
from  its  markets  the  butter,  milk,  and  other  dairy  products 
of  New  Jersey  and  the  firewood  of  Connecticut. 

Rhode  Island  imposed  an  ad  valorem  tax  of  five  per  cent 
on  all  articles  imported  into  that  State  from  the  other  States 
as  well  as  from  foreign  countries,  with  a  proviso  for  recip- 
rocal relief.     And  so  with  other  States. 

In  regard  to  the  commercial  rivalry  and  war  of  ports,  it 
was  customary  for  States  having  available  ports  to  impose 
an   unlimited   tax   on    all    goods   reaching   this    continent 


through  their  ports,  and  thus  subjecting,  for  the  benefit  of 
themselves,  the  people  of  the  other  States  to  a  substantial 
burden  of  taxation. 

For  example,  the  ports  of  Boston  and  New  York  were  at 
one  time  far  behind  Newport  in  the  value  of  their  imports, 
and  Rhode  Island,  according  to  the  Supreme  Court  of  the 
United  States,  paid  all  the  expenses  of  her  government  by 
duties  on  goods  landed  at  her  principal  ports. 

The  condition  at  that  time  of  commercial  selfishness  and 
greed  between  the  States  is  thus  described  by  Fiske  in  his 
work  on  the  "Critical  Period  of  American  History,  1783- 
1789,"  at  page  144: 

"Meanwhile,  the  different  States,  with  their  differ- 
ent tariff  and  tonnage  acts,  began  to  make  commer- 
cial war  upon  one  another.  No  sooner  had  the  other 
three  New  England  States  virtually  closed  their  ports 
to  British  shipping,  than  Connecticut  threw  hers  wide 
open,  an  act  which  she  followed  by  laying  duties  upon 
imports  from  Massachusetts. 

"Pennsylvania  discriminated  against  Delaware; 
and  New  Jersey,  pillaged  at  once  by  both  her  greater 
neighbors,  was  compared  to  a  cask  tapped  at  both 
ends.  The  conduct  of  New  York  became  especially 
selfish  and  blameworthy.  That  rapid  growth  which 
was  soon  to  carry  the  city  and  State  to  a  position  of 
primacy  in  the  Union  had  already  begun.  After  the 
departure  of  the  British  the  revival  of  business  went 
on  with  leaps  and  bounds.  The  feeling  of  local 
patriotism  waxed  strong,  and  in  no  one  was  it  more 
completely  manifested  than  in  George  Clinton,  the 
Revolutionary  general,  whom  the  people  elected  Gov- 
ernor for  nine  successive  terms.  *  *  *  j^  ^gg  \^[^ 
first  article  of  faith  that  New  York  must  be  the  great- 
est State  in  the  Union.     But  his  conceptions  of  states- 


manship  were  extremely  narrow.  In  his  mind,  the 
welfare  of  New  York  meant  the  pulling  down  and 
thrusting  aside  of  all  her  neighbors  and  rivals. 
*  *  *  Under  his  guidance,  the  history  of  New 
York,  during  the  five  years  following  the  peace  of 
1783,  was  a  shameful  story  of  greedy  monopoly  and 
sectional  hate.  Of  all  the  thirteen  States  none  be- 
haved worse  except  Rhode  Island. 

"A  single  instance,  which  occurred  early  in  1787, 
may  serve  as  an  illustration.  The  city  of  New  York,, 
with  its  population  of  thirty  thousand  souls,  had  long 
been  supplied  with  firewood  from  Connecticut,  and 
with  butter  and  cheese,  chickens  and  garden  vegeta- 
bles, from  the  thrifty  farms  of  New  Jersey.  This 
trade,  it  was  observed,  carried  thousands  of  dollars  out 
of  the  city  and  into  the  pockets  of  detested  Yankees 
and  despised  Jersey  men.  It  was  ruinous  to  domestic 
industry,  said  the  men  of  New  York.  It  must  be 
stopped  by  those  effective  remedies  of  the  Sangrado 
school  of  economic  doctors,  a  navigation  act  and  a 
protective  tariff. 

"Acts  were  accordingly  passed  obliging  every 
Yankee  sloop  which  came  down  through  Hell  Gate, 
and  every  Jersey  market  boat  which  was  rowed  across 
from  Paulus  Hook  to  Cortlandt  street,  to  pay  entrance 
fees  and  obtain  clearances  at  the  custom-house,  just  as 
was  done  by  ships  from  London  or  Hamburg ;  and  not 
a  cart-load  of  Connecticut  firewood  could  be  delivered 
at  the  back-door  of  a  country-house  in  Beekman  street 
until  it  should  have  paid  a  heavy  duty.  Great  and 
just  was  the  wrath  of  the  farmers  and  lumbermen. 
The  New  Jersey  legislature  made  up  its  mind  to  re- 
taliate. ♦  *  *  Connecticut  was  equally  prompt. 
At  a  great  meeting  of  business  men,  held  at  New  Lon- 
don, it  was  unanimously  agreed  to  suspend  all  com- 
mercial  intercourse  with  New  York.     Every  mer- 


chant  signed  an  agreement,  under  penalty  of  two 
hundred  and  fifty  dollars  for  the  first  offense,  not  to 
send  any  goods  whatever  into  the  hated  State  for  a 
period  of  twelve  months.  By  such  retaliatory  meas- 
ures, it  was  hoped  that  New  York  might  be  compelled 
to  rescind  her  odious  enactment.  But  such  meetings 
and  such  resolves  bore  an  ominous  likeness  to  the 
meetings  and  resolves  which  in  the  years  before  1775 
had  heralded  a  state  of  war;  and  but  for  the  good 
work  done  by  the  Federal  convention  another  five 
years  would  scarcely  have  elapsed  before  shots  would 
have  been  fired  and  seeds  of  perennial  hatred  sown 
on  the  shores  that  looked  toward  Manhattan  Island." 

But  these  discriminations  and  exactions  of  one  State  as 
against  the  trade  of  another,  this  fierce  commercial  rivalry, 
this  internecine  warfare  which  threatened  the  commercial 
destruction  of  some  States  and  the  undue  elevation,  pros- 
perity and  dominance  of  others,  were  not  the  only  reasons  for 
the  insistent  demand,  which  preceded  and  finally  controlled 
the  Constitutional  Convention  of  1787,  in  regard  to  the  estab- 
lishment of  a  system  of  just  and  equitable  regulation  of  com- 
merce between  the  States  by  an  authority  fairly  representing 
them  all. 

The  question  of  commercial  regulation,  in  addition  to  its 
commercial  relation  to  the  trade  between  the  existing  States, 
possessed  also  a  most  important  and  commanding  political 
aspect.  The  development  of  the  great  West  was  then  going 
on  and  had  been  stimulated  by  the  emigration  thither  from 
the  older  States  incident  to  the  readjustments  after  the  war, 
and  the  settlement  of  the  whole  western  region  was  proceed- 
ing with  great  rapidity.  The  West  was  spoken  of  by  George 
Washington  as  a  "rising  world,"  and  signified  particularly, 


8 

in  the  minds  of  the  statesmen  of  that  day,  the  territory  now 
constituting  the  States  of  Tennessee  and  Kentucky  and  the 
States  afterwards  carved  out  of  the  territory  northwest  of  the 
Ohio  and  east  of  the  Mississippi  rivers.  The  question  of  the 
future  poHtical  aifiUations  of  this  large  and  important  terri- 
tory was  a  question  of  prime  and  of  vast  importance  to  the 
then  existing  States.  Great  Britain  was  on  the  northern 
boundary  with  its  Dominion  of  Canada,  and  Spain  on  the 
south  commanded  the  mouth,  and  hence  commanded  the 
navigation,  of  the  Mississippi  River.  The  course  of  trade  is 
determined  by  the  inducements  that  are  offered  and  the 
facilities  it  can  command.  And  political  relationships  are 
strongly  influenced  by  commercial  ties  and  interests.  It  was 
therefore  one  of  the  most  important  problems  of  that  day  to 
bind  this  great  and  developing  western  country  to  the  east- 
em  States  by  the  ties  of  intimate  commercial  intercourse. 
This  could  not  be  done  if  the  eastern  States  could  enrich 
themselves  by  imposts  upon  the  commerce  paid  for  by  the 
people  of  the  West  or  by  excluding  the  competitive  products 
of  the  West  from  the  eastern  markets. 

Great  Britain  or  Spain,  close  neighbors  on  the  north  and 
south,  could  easily  outbid  such  a  policy  of  narrowness  and 
greed  as  the  people  of  the  West  saw  already  in  operation  in 
many  of  the  most  important  eastern  States,  and  it  was  appar- 
ent that,  whether  or  not  such  a  policy  should  be  adopted, 
could  not  be  safely  left  to  the  individual  States. 

George  Washington,  in  speaking  of  the  future  political 
affiliations  of  these  pioneer  western  people,  said : 

"If  we  cannot  bind  these  people  to  us  by  interest, 
and  it  is  not  otherwise  to  be  effected  but  by  a  commer- 
cial knot,  we  shall  be  no  more  to  them  after  a  while 
than  Great  Britain  or  Spain,  and  they  may  be  as 


closely  linked  with  one  of  those  powers  as  we  wish 
them  to  be  with  us,  and,  in  that  event,  they  may  be 
a  severe  thorn  in  our  side." 

It  thus  became  politically,  as  well  as  economically,  neces- 
sary to  find  a  way  of  fairly  regulating  commerce  in  the  inter- 
est of  all,  free  from  the  narrowness,  the  greed  and  the  selfish- 
ness of  particular  States. 

The  only  way  of  remedying  these  commercial  evils,  which 
were  flagrant  and  were  universally  recognized,  and  of  meet- 
ing the  political  exigencies  of  the  situation,  was,  according  to 
the  practically  universal  belief  of  the  day,  to  exclude  the 
States  from  the  power  to  regulate  commerce  among  the  States 
and  with  foreign  nations,  and  to  confer  that  power  upon  a 
central  authority  which  should  fairly  and  equitably  represent 
them  all. 

The  public  consciousness  on  this  subject  was,  prior  to  the 
convention,  indicated  in  a  great  variety  of  ways  and  from  a 
great  variety  of  sources. 

Alexander  Hamilton  declared  for  a  central  government 
with  "complete  sovereignty  over  all  that  relates  to  war, 
peace,  trade,  and  finance." 

James  Monroe,  as  chairman  of  a  committee  of  Congress, 
in  1785  submitted  a  report  declaring  that: 

"The  United  States  in  Congress  assembled  shall 
have  the  sole  and  exclusive  right  and  power  of  deter- 
mining on  peace  and  war,  except  in  the  cases  men- 
tioned in  the  sixth  article,  *  *  *  and  of  regulat- 
ing the  trade  of  the  States,  as  well  with  foreign 
nations  as  with  each  other."     *     *     * 

James  Madison  moved  in  the  General  Assembly  of  Vir- 
ginia a  resolution  for  a  convention  of  delegates  of  all  the 
2e 


10 

States  "to  take  into  consideration  the  trade  of  the  United 
States;  to  examine  the  relative  situation  and  trade  of  the  said 
States;  to  consider  how  far  a  uniform  system  in  theircommer- 
cial  regulations  be  necessary  to  their  common  interest  and 
permanent  harmony,"  etc. 

There  were  similar  expressions  of  view  in  the  legislatures 
of  Rhode  Island,  of  Connecticut,  of  New  Jersey,  in  resolutions 
of  town  meetings  and  in  reports  of  committees  of  Congress. 

The  Madison  resolution  resulted  in  the  assembling  of  the 
Annapolis  Convention  in  1786  and  in  a  recommendation, 
by  the  delegates  there  assembled  to  consider  the  regulation  of 
commerce,  that  Congress  should  call  a  general  convention  of 
all  the  States  to  meet  in  Philadelphia  on  the  second  Monday 
in  May,  1787,  "to  devise  such  further  provisions  as  shall  ap- 
pear to  be  necessary  to  render  the  Constitution  of  the  Federal 
Government  adequate  to  the  exigencies  of  the  Union." 

This  was  the  convention  which  framed  the  Constitution, 
and  the  declaration  of  the  Supreme  Court  of  the  United 
States  in  the  case  of  Cook  vs.  Pennsylvania,  97  United  States, 
574,  is  amply  justified,  to  the  effect  that: 

"A  careful  reader  of  the  history  of  the  times  which 
immediately  preceded  the  assembling  of  the  conven- 
tion which  framed  the  American  Constitution  cannot 
fail  to  discover  that  the  need  of  some  equitable  and 
just  regulation  of  commerce  was  among  the  most  in- 
fluential causes  which  led  to  its  meeting." 

The  result  of  its  deliberations  on  the  four  large  subjects 
of  national  concern  enumerated  by  Alexander  Hamilton — 
which  are  the  four  fundamental  essentials  of  national  exist- 
ence and  efficiency — and  as  to  which  Hamilton  declared  that 
the  Federal  Government  should  possess  complete  sovereignty, 


11 

namely,  the  purse,  war,  peace,  and  commerce,  is  exhibited  in 
the  following  clauses  of  the  Constitution : 

"The  Congress  shall  have  power: 

"To  lay  and  collect  taxes,  duties,  imposts  and  ex- 
cises, to  pay  debts  and  provide  for  the  common  de- 
fense and  general  welfare.     *     *     * 

"To  borrow  money  on  the  credit  of  the  United 
States. 

"To  regulate  commerce  with  foreign  nations  and 
among  the  several  States,  and  with  the  Indian  tribes. 

"To  declare  war.     *     *     * 

"To  raise  and  support  armies. 

"To  provide  and  maintain  a  navy." 

The  fullness,  the  competency  and  the  completeness  of  no 
one  of  these  powers  has  ever  been  questioned,  except  of  the 
power  to  regulate  commerce. 

It  is  universally  recognized  that  it  is  a  right  of  each  State 
that  the  Federal  Government  shall  provide  for  the  common 
defense;  that  the  Federal  Government  shall  determine  as 
between  peace  and  war ;  that  it  shall  raise  and  support  armies 
and  shall  equip  and  maintain  a  navy. 

But  there  are  other  rights  of  the  States  not  less  important 
and  not  less  sacred.  These  include  the  right  to  avail  them- 
selves, separately  and  individually,  of  the  protection  guar- 
anteed to  them  and  to  their  people  by  the  Federal  Constitu- 
tion against  the  selfishness  in  trade  of  their  sister  States. 

In  adopting  the  Commerce  Clause  of  the  Constitution  they 
intended  to  secure  protection  against  this  very  thing.  In  the 
light  of  the  history  of  its  adoption,  is  it  not,  since  the  Con- 
stitution, a  right  of  New  Jersey  that  New  York  shall  not 
regulate  the  trade  between  them  as  it  did  when  it  excluded 
the  products  of  New  Jersey  industry  from  the  New  York 


12 

markets ;  is  it  not  a  right  of  the  State  of  Connecticut,  since  the 
Constitution,  that  its  products  shall  not  be  excluded  from  the 
markets  of  New  York  and  Boston  by  State  action,  and  is  it 
not  since  the  Constitution,  a  right  of  each  of  the  States  that 
Virginia  and  North  Carolina  and  Tennessee  and  the  great 
food-producing  States  of  the  West  shall  not  be  able,  as  Vir- 
ginia and  North  Carolina  once  did,  to  put  an  embargo  upon 
the  shipments  of  their  products  beyond  their  respective 
borders,  and  shall  not  be  able  to  exclude  the  people  of  the 
other  States  from  the  riches  of  their  farms,  of  their  forests, 
of  their  mines,  and  of  their  factories?  Is  it  not  a  right  of 
each  State  that  Congress  alone,  which  represents  all,  shall  be 
the  exclusive  arbiter  of  what  is  right  and  just  in  interstate 
and  foreign  trade,  and  that  no  State  shall  be  permitted  to  ad- 
vance itself  at  the  expense,  and  to  the  disadvantage  of  the 
others,  perchance  by  its  narrowness,  its  greed,  and  its  selfish- 
ness in  trade? 

The  existence  of  this  exclusive  power  in  Congress  to  regTi- 
late  interstate  and  foreign  commerce  is  of  no  less  impor- 
tance— is  in  fact  of  far  larger  importance — as  a  State's  right 
now,  than  it  was  when  the  Constitution  was  adopted. 

Commerce  itself  in  these  one  hundred  and  twenty-six  years 
has  assumed  a  far  greater  consequence  in  the  affairs  and  des- 
tinies of  men  and  of  nations,  than  it  had  in  those  early  days. 
Steam  and  electricity  have  come  with  their  mighty  revolu- 
tionizing influence  and  have  brought  all  the  States  and  all 
the  nations  into  close  and  intimate  commercial  relationships. 
Men  no  longer  deal  in  trade  most  largely  with  their  imme- 
diate neighbors,  but  find  it  essential  to  their  success  to  have 
free  and  unimpeded  and  adequate  access  to  the  markets  of 
the  world. 


13 

The  interests  of  the  producing  States — particularly  the 
States  of  the  South  and  West  where  there  are  no  markets  of 
the  first  importance — imperatively  require  easy  and  quick 
transportation  to  the  world's  great  market  cities,  such  as  New 
York,  Philadelphia,  Boston,  and  Chicago  in  this  country, 
and. Liverpool,  London,  Paris,  and  Berlin  abroad. 

It  may  be  safely  stated  that  at  least  eighty-five  per  cent  of 
the  trade  of  Tennessee,  and  of  the  United  States  generally, 
moves  in  interstate  and  foreign  commerce.  It  traverses  vast 
distances ;  it  must  pay  low  mileage  rates  to  reach  and  to  com- 
pete in  these  distant  markets ;  it  cannot,  because  of  the  value 
of  time  and  the  small  margins  of  profit,  permit  frequent 
handlings  or  breakings  of  bulk. 

To  meet  these  economic  conditions — to  satisfy  the  essential 
needs  and  to  accommodate  the  movement  of  this  great 
traffic — it  has  become  necessary  to  create  long  and  con- 
tinuous lines  of  railroad  in  the  place  of  the  short  and  discon- 
nected lines  which  were  once  adequate  to  the  requirements  of 
trade.  These  large  systems  of  railroad,  which  have  come 
in  obedience  to  the  economic  law  which  demands  continu- 
ous, rapid,  and  unbroken  transportation,  necessarily  extend 
across,  and  are,  under  existing  law,  in  many  respects  subject 
to  the  varying  policies  of  many  States. 

The  problem  of  greatest  magnitude  which  concerns  the 
country  in  regard  to  them,  is  how  their  continuity  of  service 
shall  be  preserved  unimpeded  and  what  shall  be  the  quality 
of  adequacy  and  efficiency  which  their  transportation  facili- 
ties shall  possess. 

It  must  be  remembered  that  the  transportation  capacity  of 
the  carriers  marks  the  maximum  limit  of  the  trade,  and 
hence  of  the  producing  capacity,  of  the  people  whom  they 


14 

serve.  No  more  will  be — no  more  can  be — produced  than 
can  be  carried  to  market.  Therefore,  each  State,  being  de- 
pendent for  its  prosperity  upon  the  producing  capacity  of  its 
people,  is  deeply  concerned  that  the  transportation  capacity 
of  the  carriers  which  serve  it  shall  be  adequate  and  shall  not 
be  crippled  or  impaired. 

A  broad  and  wise  policy  in  dealing  with  the  instrumen- 
talities of  commerce  is,  therefore,  a  matter  of  supreme  interest 
to  all  the  States,  A  narrow,  or  niggardly,  or  selfish  policy, 
if  adopted  by  any  one  of  the  States  through  which  a  railroad 
passes,  may  seriously  cripple  and  depress  the  commerce  of 
every  other  State  which  the  railroad  serves. 

No  adequate  conception  of  the  railroad  problem,  as  it 
affects  the  development  of  the  country  and  the  growth  of  its 
commerce,  can  ignore  the  necessity  that  transportation  facili- 
ties must  be  all  the  time  growing  and  improving  to  keep  pace 
with  the  growth  and  expansion  of  commerce — otherwise 
there  will  be  no  growth  or  expansion  of  commerce. 

Such  an  increase  in  railroad  facilities  involves  the  constant 
input  of  new  capital,  for  no  railroad  is  ever  finished  except 
in  a  dead  country.  It  is  a  mere  platitude  to  say  that  new 
capital  can  only  be  attracted  by  credit.  While  no  one  State 
through  which  a  railroad  passes  can  alone  establish  its  credit, 
a  single  State  can  impair  or  destroy  it. 

If  a  railroad  runs  through  and  serves  eleven  States,  ten  of 
them  may  be  guided  by  broad  and  liberal  views  and  may  he 
controlled  by  the  policy  of  encouraging  the  establishment 
and  maintenance  of  adequate  transportation  facilities.  The 
eleventh  may,  however,  have  no  adequate  commercial  out- 
look or  may  be  temporarily  under  the  domination  of  small 
and  time-serving  politicians.     It  may  reduce  rates  on  State 


15 

traffic  so  as  to  barely  escape  the  line  of  confiscation.  It  may 
be  unwilling  that  its  State  traffic  shall  contribute  anything  to 
the  liberal  program,  favored  by  the  other  ten,  which  would 
build  for  the  future  and  insure  the  present  and  continuing 
adequacy  of  the  transportation  facilities  on  which  all  are 
equally  dependent. 

In  such  a  case,  what  shall  be  done?  Shall  the  ten  States 
bow  to  the  will  or  caprice  of  the  one  and  allow  it  to  control? 
Shall  they  permit  the  narrow  views  of  the  one  State  to  limit 
the  standard  or  the  character  or  the  quality  of  facilities 
which  their  people  shall  enjoy? 

If,  on  the  other  hand,  the  standard  of  facilities  is  not 
brought  down  to  this  low  level  and  is  to  be  made  adequate 
to  the  needs  of  all,  then  the  commerce  of  the  other  ten 
States,  or  interstate  commerce,  or  both,  must  bear  the  burden, 
which  the  dissenting  State  has  refused  to  share,  of  building 
up  adequate  transportation  facilities. 

In  either  case,  the  dissenting  State,  in  a  very  effective  way, 
regulates  the  commerce  and  the  business  opportunities  of  all. 
It  either  determines  the  standard  of  the  commercial  facilities, 
and  therefore  the  commercial  opportunities  of  the  other 
States,  or  it  throws  on  them  an  unfair  and  undue  proportion 
of  the  burden  of  sustaining  them  at  a  level  of  higher  effi- 
ciency. 

Moreover,  in  the  Shreveport  case,  recently  decided  by  the 
Supreme  Court  of  the  United  States,  and  in  another  State 
which  I  shall  not  more  particularly  identify,  State  rates 
have  been  greatly  reduced  for  the  avowed  purpose  of  pre- 
serving State  markets  for  State  trade,  and  thus  excluding  and 
discriminating  against  the  trade  of  other  States. 

Is  it  not  a  right  of  each  of  these  States,  thus  oppressed  by 


16 

the  narrow  and  selfish  policy  of  one,  to  have  its  commerce 
freed  from  these  State  restrictions  and  regulated  by  Congress, 
representing  all  the  States,  in  accordance  with  the  compact  of 
the  Constitution? 

I  have  refen-ed  to  the  great  importance  to  the  welfare  of  all 
the  States  of  transportation  facilities — to  the  complete  de- 
pendence of  the  States  upon  their  adequacy,  their  efficiency 
and  their  readiness  for  service.  I  have  called  attention  to 
the  credit  of  the  carriers — their  capacity  to  obtain  new 
money — as  bearing  an  important,  and  in  fact  controlling, 
relationship  to  the  problem  of  transportation. 

In  this  connection,  and  as  exerting  an  important  influence 
on  the  financial  capacity  of  the  carriers,  it  is  appropriate  to 
consider  their  capacity  to  issue  and  to  dispose  of  their  secu- 
rities. 

It  is  manifest  that,  if  such  issue  is  to  be  regulated  by  the 
individual  States,  every  State  is  at  the  mercy  of  the  others. 
A  bond,  to  bp  available  in  the  market,  must,  as  a  rule — espe- 
cially now  when  most  bonds  are  necessarily  junior  liens — be 
secured  upon  the  whole  railroad  line;  and  this  crosses  many 
States.  One  of  the  States,  therefore,  if  it  possesses  the  power 
to  regulate  the  issue  of  securities  of  an  interstate  carrier,  may 
disappoint  and  defeat  a  financial  plan  approved  by  all  the 
other  States  and  necessary  to  the  carrier's  transportation  eflB- 
ciency. 

Even  if  the  State  does  not  press  its  authority  to  the  extent 
of  absolutely  declining  to  sanction  the  issue,  it  may  selfishly, 
and  as  a  political  exp()dient,  attach  a  condition  that  a  desig- 
nated portion  of  the  proceeds  shall  be  spent  within  its  borders 
where  it  may  not  in  fact  be  needed,  when  the  needs  of  inter- 
state commerce  and  the  commerce  of  other  States  fairly  re- 
quire that  the  whole  shall  be  expended  elsewhere. 


17 

The  power  of  the  State  to  consent,  or  to  withhold  its  con- 
sent, is  equivalent  to  a  power  to  control  the  character  and  the 
location  of  additional  transportation  facilities  against  the 
views  and  the  interests  of  all  the  other  States. 

But  even  if  the  necessity  for  the  new  capital  is  universally 
recognized,  and  the  approval  of  the  States  is  not  ultimately 
withheld,  the  time  necessary  to  permit  the  investigation  and 
to  secure  the  approval  of  so  many  would,  or  might,  constitute 
a  fatal  obstacle  in  the  way  of  a  successful  financial  operation. 
Promptness — ability  to  avail  without  unreasonable  delay  of  a 
favorable  market — is  essential  to  success  in  placing  large 
financial  offerings. 

Conceive  the  not  impossible  case  suggested  by  a  recent 
dramatic  event  in  the  history  of  the  world. 

A  railroad  company  has  been  maturing  for  some  time  past 
a  large  financial  plan  with  the  purpose  of  taking  advantage 
of  a  general  market  such  as  we  all  know  recurs  at  periods 
some  times  widely  separated.  A  great  steamer,  say  the 
Lusitania,  sails  at  a  moment  of  international  tension.  Those 
in  charge  of  the  financial  policy  of  the  railroad  are  justified 
in  believing  that  something  may  happen  to  that  steamer 
which  will  affect  international  relations  and  destroy  for 
many  months,  and  perhaps  for  years,  a  market  for  securi- 
ties. So  far  as  their  own  business  preparation  is  concerned, 
they  are  ready  to  bring  out  the  carefully  matured  plan  and 
place  their  securities.  It  becomes  then  a  question  of  days  be- 
fore the  possibility  of  disaster  to  that  steamer  may  be  realized. 
Meanwhile  some  State  commission,  for  some  such  reason  as 
has  been  suggested,  is  delaying  the  approval  of  the  issue. 
It  does  delay  until  the  disaster  happens  and  so  defeats  the 
financial  plan,  with  the  result  that  there  is  at  least  an  indefi- 
3e 


18 

nite  postponement  of  additional  railroad  facilities  essential  to 
the  best  interest  of  the  commerce  of  the  country. 

Of  course,  the  chances  for  such  delay  are  increased  just  in 
proportion  to  the  number  of  States  which  must  be  consulted 
in  the  matter  of  regulation. 

From  whatever  standpoint,  therefore,  it  be  considered, 
the  destructive  effect  of  a  power  in  the  several  States  to  de- 
termine and  limit  the  financial  capacity  of  the  carriers, 
through  a  regulation  of  the  issue  of  their  securities,  is  appar- 
ent. It  is  manifest  that  the  financial  capacity  of  a  carrier 
which  serves  many  States  is  a  matter  of  transcendent  impor- 
tance to  them  all.  No  one  of  them  should  be  allowed  to  con- 
trol or  to  injuriously  affect  it.  It  is  a  right  of  each  of  the 
States  that  a  matter  so  important,  and  in  which  all  of  them 
have  so  vital  an  interest,  shall  not  be  controlled  by  one  which 
may  have  a  selfish  interest  or  an  illiberal  policy. 

It  is  a  right  of  the  States,  in  respect  of  this  matter  oi  com- 
mon and  supreme  concern,  that  an  authority,  which  is  the 
authority  of  all,  whose  power  is  delegated  by  all,  which  rep- 
resents all  and  which  acts  for  all,  shall  alone  be  the  arbiter  of 
what  may  be  conflicting  views  and  interests,  and  shall  alone 
regulate  and  control. 

And  yet  sixteen  States  have  enacted  statutes,  each  asserting 
for  itself  the  individual  right  to  control  the  issue  of  stocks 
and  bonds  of  interstate  carriers.  And  the  end  is  not  yet,  for 
many  other  States  are  considering  legislation  which  will  give 
to  them  a  power  which  they  see  is  already  being  exercised  by 
others. 

Another  striking  illustration  of  the  exercise  by  one  State 
of  a  power  to  discriminate  against  and  to  injure  the  com- 
merce of  other  States  and  interstate  commerce  is  found  in  the 


19 

State  laws  which  impose  heavy  penalties  for  failure  to  fur- 
nish cars  or  other  instrumentalities  of  commerce  within  a 
limited  time. 

One  of  the  States  now  imposes  a  fine  of  five  dollars  for  each 
day  of  delay;  an  adjoining  State  fixes  the  fine  at  one  dollar 
per  day ;  and  the  interstate  commerce  law  fixes  no  per  diem 
penalty  at  all.  A  case  may  well  be  imagined  where  a  carrier 
is  reasonably  supplied  with  equipment,  but  a  large  portion 
of  it  has  moved  in  the  regular  channels  of  commerce  to  a 
point  on  or  off  its  line  and  distant  from  the  place  where  the 
demand  for  it  is  made.  If,  under  these  circumstances,  there 
is  a  demand  for  a  car  by  a  shipper  of  intrastate  traffic  in  the 
State  which  imposes  a  heavy  fine  for  delay,  and  is  also  made 
by  a  shipper  in  the  State  which  imposes  a  light  fine,  and  is 
also  made  by  a  shipper  in  interstate  commerce  as  to  which  no 
fine  at  all  is  imposed,  and  there  is  at  the  moment,  by  reason 
of  special  circumstances,  only  one  car  available  to  meet  all 
three  of  these  demands,  it,  of  course,  results  that  the  carrier 
in  self -protection  must  deliver  the  one  available  car  to  the 
shipper  in  the  State  which  imposes  the  largest  fine,  and  the 
other  must  go  without.  In  other  words,  the  greediest,  the 
most  selfish  and  the  most  unreasonable  State  thus  secures  by 
its  own  laws  a  preference  for  its  own  commerce  over  the  com- 
merce of  its  sister  States  and  over  interstate  commerce  itself. 

Is  it  not  a  right  of  the  other  States  to  have  the  question 
of  a  fair  distribution  of  available  car  supply  determined,  not 
by  one  of  the  interested  States,  but  by  the  authority  which 
represents  them  all  and  can  see  that  a  rule  of  equity  and  fair- 
ness shall  prevail? 

In  addition  to  what  has  been  said,  a  long  and  formidable 
list  of  State  statutes,  already  in  effect,  might  be  given,  which, 


20 

without  the  consentof  the  other  States, impose  serious  burdens 
of  expense  upon  their  commerce,  and  thus  upon  their  people. 
All  discriminate,  or  have  the  effect  of  discriminating,  against 
their  commerce,  both  State  and  interstate. 

Thus,  three  States  have  passed  laws  making  it  illegal  for  a 
carrier  having  repair  shops  in  the  State  to  send  any  of  its 
equipment,  which  it  is  possible  to  repair  there,  out  of  the 
State  for  repairs  in  another  State;  fifteen  States  have  at- 
tempted to  secure  preferred  treatment  of  their  State  traffic, 
either  by  heavy  penalties  for  delays  or  by  prescribing  a  mini- 
mum movement  of  freight  cars,  some  of  them  requiring  a 
minimum  movement  of  fifty  miles  per  day,  whereas  the  aver- 
age movement  for  the  United  States  is  not  over  twenty-six 
miles  per  day — one  of  these  States  imposing  a  fine  of  ten 
dollars  per  hour  for  the  forbidden  delay ;  twenty  States  have 
hours-of -service  laws,  varying  from  ten  to  sixteen  hours; 
twenty  States  have  full-crew  laws;  twenty -eight  States  have 
headlight  laws,  with  varying  requirements  as  to  the  character 
of  the  lights,  and  fourteen  States  have  safety-appliance  acts. 

Let  me  take  an  illustration  from*  a  single  class  of  these 
statutes.  I  will  select  the  Full  Crew  laws  of  the  States  of  New 
Jersey  and   Pennsylvania. 

These  laws  impose  upon  the  railroads  operating  within 
their  respective  limits  an  expense  for  unnecessary  employes 
amounting  to  more  than  one  million  seven  hundred  thou- 
sand dollars  a  year.  There  is  nothing  in  these  State  laws 
putting  the  burden  of  this  expense  on  their  own  traffic  alone. 
That  burden  extends  to  all  the  traffic  these  railroads  carry, 
and  thus  the  traffic  of  Virginia  and  Tennessee  and  Missis- 
sippi and  of  all  the  American  States  whose  traffic  enters  New 
Jersey  or  Pennsylvania  is  laid  under  tribute  by  these  State 
enactments. 


21 

Or,  the  proposition  may  be  stated  another  way.  The  ex- 
pense put  upon  the  railroads  by  the  Full  Crew  statutes  of 
these  two  States  would  pay  the  interest  at  five  per  cent  upon  a 
capital  fund  of  more  than  $34,000,000.00.  By  requiring  an 
amount  equivalent  to  the  interest  on  this  capital  to  be  ex- 
pended on  useless  employes — at  least  on  employes  as  to 
which  the  other  States  were  not  consulted — instead  of  being 
used  to  obtain  new  capital,  these  two  States  have  by  their 
own  independent  action  reduced  the  borrowing  capacity  of 
the  railroads  t9  the  extent  of  $34,000,000.00.  That  amount 
of  capital  would  have  bought 

1,360  Locomotives, 

Or  3,400  Steel  Passenger  Cars, 

Or  34,000  Freight  Cars, 

Or  1,133,000  Tons  of  Steel  Rails, 

Or  would  have  block-signaled  13,600  miles  of  road. 

Thus,  facilities  immensely  valuable  to  the  traffic  of  the 
other  States  have  been  made  impossible — not  by  their  own 
action,  but  by  the  independent  action  of  New  Jersey  and 
Pennsylvania. 

It  is  apparent  that  these  and  similar  statutes  which  impose 
burdens  and  create  discriminations  violate  the  principle  of 
just  and  equal  treatment  as  against  the  States  which  have  a 
more  liberal  policy,  and  constitute  serious  invasions  of  the 
field  of  regulation  by  the  States  which  adopt  them  to  the  sub- 
stantial prejudice  of  those  which  have  not  sought  to  obtain 
special   or  preferential   treatment. 

Again,  it  may  be  asked,  is  it  not  a  right  of  the  States  that 
no  one  State  shall  possess  the  power  of  imposing  a  burden 
which  the  people  of  other  States  must  help  to  bear,  or  of 
securing  a  preference  for  its  own  traffic  over  the  traffic  of  the 
others? 


22 

In  order  to  secure  equality  of  burden  and  of  privilege  and 
the  benefit  of  an  adequate  and  efficient  transportation  system, 
the  power  to  regula^te  commerce  among  the  States  and  with 
foreign  nations  was,  by  their  own  action,  withdrawn  from  the 
individual  States  and  conferred  upon  Congress,  which  rep- 
resents them  all. 

In  fact,  it  may  be  truly  said  that  the  Constitution  itself 
was  the  offspring  of  the  insistent  demand  of  the  States  for 
protection  in  trade  against  the  other  States.  It  is,  therefore, 
peculiarly  a  right  of  the  States  to  have  this  purpose  fully 
and  fairly  carried  into  effect. 

It  seems  not  unprofitable  to  turn  from  the  problem  of 
commercial  regulation,  considered  only  as  a  problem  of 
peace,  to  the  lessons  we  must  learn  in  regard  to  it  from  the 
great  events  now  occurring  on  the  continent  of  Europe. 

It  will  be  merely  fatuous  in  us  to  close  our  eyes  to  the  fact 
that  the  organization  of  society  will  be  revolutionized  in 
consequence  of  the  historic  developments  of  the  past  year. 

We  had  fondly  dreamed  that  the  possibility  of  great  wars 
had  disappeared  in  the  purer  light  of  civilization,  and  that 
the  barbaric  and  savage  instinct  of  nations  had  been  obliter- 
ated by  the  advance  of  moral  and  intellectual  principles 
among  mankind. 

This  dream  has  been  rudely  dissipated  and  the  world  has 
been  made  to  realize  that,  when  it  comes  to  war,  there  has 
been  no  advance  in  humanity  or  morality  since  the  Goths 
and  Huns  and  Vandals  fought  and  slew  and  pillaged  four- 
teen centuries  ago.  The  only  difference  is  a  difference  in 
slaying  power  and  in  efficiency.  These  have  advanced  as 
Science  has  marked  out  the  way.  The  lesson  has  been 
taught,  in  the  blood  and  agony  and  tears  of  nations,  that 


23 

hereafter,  when  it  comes  to  the  test,  it  is  only  the  organized 
and  efficient  nation  which  can  survive. 

The  world  has  marveled  to  see  a  nation,  with  compara- 
tively small  territorial  possessions,  rise  in  arms  against  the 
strongest  nations  of  the  earth  and  defy  them  all  with  its 
organized  energy  and  power. 

Whatever  may  be  the  ultimate  result  of  this  titanic  strug- 
gle, the  lesson  of  national  efficiency  has  been  taught  and  will 
never  be  forgotten.  Its  influence  has  reached  even  to  this 
remote  Western  Hemisphere,  and  hereafter  men  will  put  a 
new  value  on  our  national  union  and  will  recognize  the  neces- 
sity for  stronger  and  more  perfect  national  organization  to 
meet  the  dangers  which  all  of  us  see  may  easily  assail  us. 
W^e  have  had  it  borne  in  upon  us  that  the  most  militant  and 
most  efficient  nation  of  Europe  has  outgrown  its  territorial 
limits  and  is  looking  for  other  lands  to  colonize,  into  which 
it  will  introduce  its  own  national  ideals,  its  own  national  effi- 
ciency and  its  own  militant  and  aggressive  spirit. 

If  it  should  happen  that  her  policies  embrace  the  acquisi- 
tion and  colonization  of  certain  parts  of  South  America,  our 
Monroe  Doctrine  would  stand  in  the  path  of  her  ambition. 
Whatever  course  we  may  then  pursue — whether  we  limit  the 
application  of  this  doctrine  to  North  America  or  undertake 
to  enforce  it  as  to  the  entire  Western  Hemisphere — we  shall 
be  confronted  by  greatly  increased  international  complica- 
tions and  will  need  both  national  power  and  national  effi- 
ciency to  deal  with  the  conditions  which  will  be  certain  to 
arise. 

Steam  and  Electricity  and  Science  have  done  their  work 
and  have  made  great  nations  essential  to  meet  these  mighty 
forces.  The  day  of  the  small,  weak,  and  defenceless  State 
has  passed  just  as  the  day  of  the  sailing  vessel  and  the  wooden 
ship  is  gone. 


24 

Wisdom  requires  us  to  recognize  the  change  which  these 
mighty  forces  and  these  mighty  events  have  wrought.  We 
cannot  step  backward  and  disintegrate  ourselves  into  separate 
States.  We  must  be  efficient  as  a  nation  if  we  are  to  deal 
successfully  with  our  national  emergencies. 

All  this,  I  trust,  will  not  involve  us  in  the  necessity  of  be- 
coming a  military  nation,  but  it  undoubtedly  puts  upon  us 
the  imperative  obligation  to  organize  our  industrial  life  upon 
the  most  efficient  basis.  Our  resources  must  not  only  exist, 
but  they  must  be  easily  available.  We  must  realize  that  the 
agitation  must  cease  for  a  divided  sovereignty  in  respect  of 
functions  which  are  in  essence  national.  We  must  appre- 
ciate that  efficient  transportation  is  an  essential  condition  of 
national  efficiency,  and  if  we  are  to  halt  or  weaken  our  trans- 
portation systems  at  State  lines,  by  permitting  the  imposition 
of  burdens  or  the  exercise  of  hurtful,  inharmonious  or  unwise 
regulation,  we  will  make  national  efficiency  impossible.  The 
creation  of  transportation  facilities  for  a  great  nation  is  not 
the  work  of  a  day.  It  is  a  matter  of  slow  and  difficult  growth 
and  is  the  work  of  "forward  looking"  men,  who  must  antici- 
pate conditions  and  have  facilities  in  readiness  for  use  when 
they  are  needed. 

Is  it  wise  for  us  to  subject  a  matter  of  such  universal  con- 
cern and  of  such  national  importance  to  the  uncertain 
policies  and  partial  and  inadequate  outlook  of  a  single 
State?  The  Constitution  confides  it  to  Congress,  which  rep- 
resents the  general  welfare  and  common  interests  of  all  the 
States.  The  evolution  of  forces,  the  progress  of  events,  and 
the  growth  of  nations  emphasize  the  wisdom  and  necessity 
of  reposing  the  power  of  commercial  regulation,  which  so 
essentially  involves  the  national  interest  and  the  national 
efficiency,  in  the  hands  of  the  authority  which  is  alone  re- 


25 

sponsible  to  all  the  people  for  the  performance  of  national 
duties  and  the  preservation  of  our  national  liberty. 

If  it  was  to  the  interest  of  the  individual  States  to  have  a 
single  and  impartial  regulation  of  interstate  commerce  and 
its  instrumentalities  when  the  question  was  the  free  introduc- 
tion into  New  York  of  the  firewood  of  Connecticut  and  the 
dairy  products  of  New  Jersey,  it  is  far  more  so  now  in  view 
of  the  influential  relationship  which  transportation  has  come 
to  bear  to  our  national  efficiency  and  to  the  liberties  and 
destinies  of  our  people.  For  we  must  remember  that  in  a 
period  given  up  to  a  frenzy  for  overlegislation  no  business 
interest  dependent  for  its  stability  upon  the  public  confi- 
dence can  long  survive,  if  it  is  assailable,  as  the  transporta- 
tion business  now  is,  on  so  many  sides  and  from  such  an 
infinite  variety  of  sources. 

We  must  realize  that  inevitably  commerce  will  eventually 
be  regulated  exclusively  by  the  Federal  Government.  The 
existing  system  of  private  ownership  cannot  long  endure  if  it 
is  to  be  permanently  subjected  to  the  increased  burdens  and 
conflicting  policies  of  a  dual,  or  of  a  many  sided,  regulation. 
It  must  be  put  under  one  master  with  a  harmonious  and  con- 
structive policy,  or  it  will  inevitably  fail.  When  this  failure 
comes  and  governmental  ownership  takes  the  place  of  the 
present  system,  the  States  will  be  deprived  of  all  power,  and 
Congress  alone  will  necessarily  regulate  every  detail  of  rail- 
road management  and  all  the  instrumentalities  of  commerce. 

It  must  also  be  realized  that  the  regulation  of  interstate 
commerce  and  its  instrumentalities  is  no  violation  of  the 
rights  of  the  States,  is  no  invasion  of  their  prerogatives,  is  in 
no  sense  in  derogation  of  their  reserved  sovereignty,  but  in 
reality  is  merely  the  specific  performance  of  the  contract 
which  each  State  bargained  for  when  it  subscribed  to  the 
4e 


26 

Constitution.  It  is  their  covenanted  right,  and  the  cove- 
nanted right  of  each  of  them,  as  well  as  their  highest  interest, 
that  the  commerce  in  which  one  in  common  with  another 
State  is  interested  shall  be  regulated  by  the  fair  and  impartial 
judgment  of  the  authority  which  alone  springs  from  and  is 
responsible  to  them  all. 

As  was  said  by  Chief  Justice  Marshall  in  McCuUough  vs. 
Maryland,  4  Wheaton,  405,  in  speaking  of  the  powers  of  the 
Federal  Government,  of  which  one  is  the  power  to  regulate 
commerce  among  the  States  and  with  foreign  nations: 

"It  is  the  Government  of  all;  its  powers  are  dele- 
gated by  all;  it  represents  all  and  acts  for  all. 
Though  any  one  State  may  be  willing  to  control  its 
operations,  no  State  is  willing  to  allow  others  to  con- 
trol them." 

Perhaps  in  no  State  of  the  Union  are  these  views  more  uni- 
versally accepted  th^n  in  the  State  of  Tennessee. 

Like  other  States,  she  has  been  confronted  with  the  great 
economic  problems  which  have  agitated  and  perplexed  the 
people.  Temptation  to  seize  an  immediate  and  temporary 
advantage  has  been  held  out  to  her,  as  it  has  been  presented 
to  the  other  States.  But  her  people  have  not  been  seduced 
into  extremes  or  into  the  excesses  of  a  shortrsighted,  narrow 
and  destructive  policy. 

They  have  built  for  the  future,  and,  by  their  legislative 
history  of  constructive  fairness,  have  pointed  the  way  to  bet- 
ter, things  and  have  established  the  position  of  their  State 
high  in  the  annals  of  the  soundest  statesmanship  of 
America. 


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